For Businesses

SERVICES FOR BUSINESS

General Information Pertaining to Business and Employment-Based Immigrants

The Madrid Crost Law Group has more than 20 years of experience rendering legal services to business organizations of any size, as well as entrepreneurs in a variety of industries. The firm has provided legal advice and services to businesses in the areas of agriculture, allied health, architecture, construction, defense, education, entertainment, information technology, logistics, medicine, nursing, physical therapy, shipping, trading and the like. The legal services that the firm has provided are categorized as follows: providing advice on immigration-related compliance matters; assisting businesses employ foreign talent as a key to global competitiveness; and making it possible for key executive and managers to carry out various responsibilities for businesses and investors; enabling non-immigrant treaty traders and investors to direct and manage their business interests in the United States; making it possible for artists, professional entertainers and sportsmen and women to engage in activities for the benefit of the American public; and helping entrepreneurs invest in the United States and consequently create jobs for Americans.

Below are basic questions relevant to business-related immigration.

Are employers required to verify the employment eligibility of all workers?

Yes, the Immigration Reform and Control Act (IRCA) of 1986 mandates that all employers verify the identity and employment eligibility of every worker, whether born in the United States or in a foreign land. Enforcement provisions are found in Section 274A of the Immigration and Nationality Act and in the Code of Federal Regulations at 8 C.F.R. 274a. While strict compliance with this mandate is emphasized, the law also prohibits employers from engaging in discriminatory and unfair immigration-related practices. Immigration Act of 1990 (IMMACT90) further introduced provisions against document abuse and other unfair practices.

Who can file employment-based immigrant petitions?

Any legal business entity, including an individual, may file an employment-based petition.

What are the responsibilities of employers who file petitions for foreign workers?

Employers are required to abide by the terms of the petition filed for foreign workers. This includes having a bona fide job offer, the ability to comply with the wages certified by the U.S. Department of Labor, and paying the fees that employers are responsible for, according to government directives. Employers must interview applicants who respond to the advertising during the recruitment phase of labor certification process and retain documents for years.

What are the responsibilities of employers who file non-immigrant employment-based petitions for foreign workers?

Employers are required to abide by the terms of the petition filed for foreign workers. This includes having a bona fide job offer and the ability to comply with the wages certified by the U.S. Department of Labor and pay the fees that employers are responsible for, according to government directives. In the case of H-1B workers, the employer must abide by the terms of the certified labor condition application. The employer is also mandated to keep a public access file for H-1B professionals who are offered to work in specialty occupations. Employers must also meet document retention requirements in order to avoid any sanctions.

What is a labor condition application (LCA)? How different is it from labor certification?

The LCA is a declaration by an employer filing a non-immigrant H-1B petition on behalf of a professional who will fill a job offer that meets the definition of a specialty occupation. Here, the employer attests that: (a) it will offer to the foreign worker, whichever rate is higher between the prevailing and actual wages; (b) filing the H-1B will not disrupt the working conditions of similarly employed workers; (c) there is no strike, lockout or work stoppage in the occupation; (d) the employer has notified employees about the filing of a labor condition application; and (e) it will keep a public access file with enough documentation to prove the employer’s declaration.
Labor certification, on the other hand, is the initial process that employers must pursue when sponsoring a foreign national for an employment-based application for permanent residence. This process requires recruitment and advertising the position to prove that no qualified local workers are available to fill the position. This is also known as PERM, which is short for “Program Electronic Review Management”. Note that certain positions and foreign nationals may be exempt from having to comply with PERM.

What does it take to be in full immigration compliance?

The LCA is a declaration by an employer filing a non-immigrant H-1B petition on behalf of a professional who will fill a job offer that meets the definition of a specialty occupation. Here, the employer attests that: (a) it will offer to the foreign worker, whichever rate is higher between the prevailing and actual wages; (b) filing the H-1B will not disrupt the working conditions of similarly employed workers; (c) there is no strike, lockout or work stoppage in the occupation; (d) the employer has notified employees about the filing of a labor condition application; and (e) it will keep a public access file with enough documentation to prove the employer’s declaration.
Labor certification, on the other hand, is the initial process that employers must pursue when sponsoring a foreign national for an employment-based application for permanent residence. This process requires recruitment and advertising the position to prove that no qualified local workers are available to fill the position. This is also known as PERM, which is short for “Program Electronic Review Management”. Note that certain positions and foreign nationals may be exempt from having to comply with PERM.